Tenancy-in-common is a frequently tested essay topic on the bar exam.
When studying this topic, focus on four key issues:
- how to create a tenancy-in-common,
- different ways to destroy a tenancy-in-common (whether intentionally or accidentally),
- rights and duties of co-tenants, and,
- consequences of breaching a tenancy-in-common.
Definition
Tenancy-in-common is a form of ownership where two or more individuals hold undivided interest with equal right to possession in the same property.
Key Characteristics
Tenancy-in-common has several distinguishing features that set it apart from other forms of ownership.
First, there is no right of survivorship – each co-tenant’s interest passes through a will or intestacy to their beneficiary upon death, not to the other co-tenant(s).
Second, co-tenants enjoy the right to freely transfer interest, meaning each co-tenant can convey, sell, devise in will, or gift their interest without restriction.
Third, non-equal shares of interest in property are permissible allowing co-tenants to hold different percentages of ownership.
Fourth, all co-tenants have equal right to occupy or possess the land, even if their share of interest in the property is less than half.
Under modern law, when there is more than one owner of property, tenancy in common is presumed by default. When two or more owners try to create a joint tenancy but any one of the four unities are not present, tenancy-in-common results.
Common issues that arise in Tenancy-in-Common
When preparing for the MBE and Essays, these areas of conflict are commonly tested:
- Possession issues: Ouster and constructive eviction scenarios, as well as splitting rent from subtenants.
- Accounting: Each co-tenant’s right of reimbursement for repairs, improvements, and mortgage payments.
- Partition: Analyzing voluntary and judicial partition situations.
A suggested essay for practice on this topic is the July 2015 California Bar Exam which tests creation, conveyance, accounting and contribution issues arising in a tenancy-in-common.